Toronto lawyer Joseph Groia, the first lawyer convicted for incivility on the basis of submissions made in court on behalf of a client, is taking his long-standing legal battle to Ontario’s top court. From the Toronto Star.
Mr. Groia succesfully represented Mr. Felderhof, an officer and director of Bre-X, a Calgary-based mining company that had grown to a multi-billion dollar company largely based on its claim to have discovered one of the world’s largest gold finds in the jungles of Busang, Borneo. Bre-X collapsed after it was discovered that the claim was false. The collapse of Bre-X is said to be the result of one of the largest frauds ever perpetrated in the Canadian capital markets. Canadians and other investors lost over $6 billion. Mr. Groia was convicted by the Law Society Appeal Panel on November 28, 2013 for his “incivility” while representing Mr. Felderhof. Mr. Groia’s battle against his conviction for “incivility” while defending a client underscores a conflict between zealous advocacy and the desire for decorum.
Earlier this week, the Divisional Court dismissed Mr. Groia’s appeal seeking to have his conviction overturned.
Mr. Justice Ian Nordheimer for the Divisional Court looked for causes for the incivility.
“Perhaps it is the result of demands by clients who, completely unfamiliar with what actually constitutes effective advocacy, believe that an aggressive lawyer is an effective lawyer,” he said.
“Perhaps it is also the result of the frequent image of lawyers in television shows, and in other media, where actors portray lawyers in a particular fashion, unrestrained by any need to represent reality and without any concern for the reputation of the justice system. Good advocacy often does not make good television.”
The struggle between being civil and forcefully and properly representing a client in court is real, Nordheimer wrote, who concluded that when the interests clash, “I would suggest that it is better that zealous advocacy be favoured over the desire for civility. Our justice system can tolerate uncomfortable and unpleasant exchanges in the courtroom much better than we can ever tolerate a wrongful result.”
Justice Nordheimer explained that for uncivil conduct to rise to the level that would properly engage the disciplinary process, it must be conduct that, in addition to being uncivil, will also bring the administration of justice into dispute, or would have the tendency to do so. It is conduct that calls into question the integrity of the court process and of the players involved in it. It is conduct that risks bringing the administration of justice into disrepute because it is conduct that strikes at the very qualities of what the justice system represents. It is conduct that would make an impartial outside observer question the central tenets upon which the justice system is based. It is the difference between impassioned, but reasoned, disagreements and the uninformed, nasty, personal tirades that too often mark the exchanges we see in political and media exchanges on matters of public importance. It is the hallmark of professionalism that both sides recognize that reasonable people can have strong, but legitimate, disagreements without the need for either side to call into question the honour or integrity of their opponent.
OTLA holds integrity, good advocacy, mutual respect and civility as core values. The OTLA Board of Directors has devoted an extraordinary amount of time, energy and resources creating our Standards of Excellence (SoE) and Code of Conduct for our membership. Led by OTLA Past President Paul Harte, a team of over a dozen Board Members and several staff have traveled the Province to obtain membership views on a variety of challenging ethical, professional and business issues. The vast majority of lawyers practising in Ontario are honest, hard-working and ethical individuals; however, it is fair to say that membership feedback highlighted troubling behaviour on the part of a small minority that demands a response. There is evidence that this small minority have engaged in conduct which the rest of us would consider unscrupulous, improper and unethical. The SoE committee has drafted a working statement of Core Values that were put to the membership at the Fall Conference. The hierarchical values are as follows:
- Integrity: OTLA members act at all times with professional integrity.
- Best Interests of the Client: OTLA members respect and act in the best interests of their clients and put those interests before the interests of all others.
- Mutual Respect and Civility: OTLA members show respect for all individuals they interact with in a professional capacity, treating them fairly and courteously.
- Highest Standards of Advocacy: OTLA members strive to achieve and maintain the highest standards of skill and competence.
- Access to Justice: OTLA members provide access to justice, including access to the Court system, for those who have suffered injury and losses as the result of wrongdoing by others.
- Mutual Cooperation and Support: OTLA members help each other by sharing knowledge, advice, guidance and time without expectation of personal gain.
These Core Values echo the principles set out by the Divisional Court and will provide the framework for best practices for OTLA personal injury lawyers in the Province of Ontario. OTLA President Steven Rastin goes into further detail in an upcoming edition of the Litigator magazine.
This blog post was contributed by Roelf Swart, OTLA Blog Committee member and lawyer practicing with Elkin Injury Law in St. Catharines, Ontario.